The idea behind penning the article of February 7 was to problematise what we normally accept as the given. That being so, and given the comments I have got, I failed. Some readers have asked what my point was. It is this desire for clarity in situations that defy neatness that informs our collective approach even as one understands man’s hankering after clarity.
But that is precisely the problem and the point. I took just one situation. What must inform the decision to kill; what calculus must we use? Even when we decide, or can, on the calculus, it should be obvious that the decision to kill someone must presuppose some extraordinary circumstance, some massive deviation from normal life.
If we use the state as the unit of analysis and also presuppose that a large collection of people (society) accept the state and relinquish to it the individual right to violence, then too we cannot allow that right to be used arbitrarily. This is where the concept of due process comes in. Could it be, however, that a society decides that a certain group threatens their way of life and must be declared the enemy, and having done so, revoke their right to due process? That’s possible. But it still leaves us with the problem of how to ensure that the exception thus created does not become the norm?
One of the most noted and controversial German jurists, Carl Schmitt, in his The Concept of the Political posited the friend-enemy distinction as the central theme of sovereignty. “To the state as an essentially political entity belongs the jus belli, i.e., the real possibility of deciding in a concrete situation upon the enemy and the ability to fight him with the power emanating from the entity....”
Schmitt’s idea of power that emanates from the ‘political’ is, in theory, unlimited. It could be argued that this power which decides not just the exception — which is external to law while being made to emanate from it — but also death informs the functioning of the state and in a paradoxically symbiotic relationship to life sustains it.
It is this paradox which Pheng Cheah argued in Spectral Nationality: The Living On [sur-vie] of the Postcolonial Nation in Neo-colonial Globalisation: “[T]he nation’s seemingly inevitable affinity with death is paradoxically inseparable from the desire for life. For the destructive, or, better yet, sacrificial, tendencies of nationalism are part of an attempt to protect or maximise the capacity for life”.
Seen from this perspective, killing those who want to destroy a way of life becomes an extraordinary but justified response to an extraordinary situation. The society sends its own to death in the dialectic that informs the friend-enemy distinction in a mortal contest.
So, what’s the big deal if the state kills a bunch of terrorists outside the law? Unfortunately, much.
Firstly, the state is not all-knowing. Secondly, the state functions through organisations that develop their own culture. Thirdly, such organisations as are entrusted with the exercise of violence on behalf of the state can, over a period of time, develop an extralegal ethos that must be checked. Fourthly, any state or society whose powers are not subject to checks and balances will indulge in excesses. Fifthly, such excesses, if unchecked, will manifest themselves not just against the ‘enemy’ but also in relation to other areas of life. One cannot expect security forces that have developed a general disregard for law to use discretion in some cases while dispensing ‘justice’ outside the law in others. Finally, and this list is far from exhaustive, a general disregard for law and its functioning will render a society abnormal precisely in its quest for normality.
Of course, there is the idea of emergency ethics. There are times when, to save what defines them, a people have to abrogate what defines them. But equally, they must know that what they are doing, or have been forced to do, is not the norm.
And that is where one must point out, debate, check, and when required, establish the reach of law against those who are proven to have exceeded their legal mandate.
There is terrible tension here. Some commentators have suggested that we need to improve the law of evidence. Of course. But to think that doing so will make the tension disappear is to lose sight of the complexity that resides at the intersection of law and politics. Even as we have been faced with this internal war for a decade, we have failed, rather remarkably, to debate issues that defy linear logic.
As Sartre’s character Hoerderer says: “I have dirty hands right up to the elbows. Do you think you can govern innocently?” Maybe not. But should it become the norm?
Published in The Express Tribune, February 10th, 2012.
COMMENTS (13)
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While the world evolves out of the concept of capital punishment, we descend to a discourse in extra judicial killing. We do so because we have had our collective cognitive faculty serially impaired by our wavering leaders. Rule of law prevails only when neither of its subjects is more equal than the equal including those in serving arms of our legal system, those truly armed and those armed with pen.
One of the basic lessons of sovereignity is to respect others sovereignity. State cannot come to a conclusion that it is serving the principle of justice and equality by violating every other law in the land. Pakistan must understand that Afghanistan and India are sovereign countries and that they cannot be pushed just to gain some 'geo-political strategic depth'. Once pakistan understand this basic concept, everything else will fall in place... at least thats what I think..
@Mirza: “So, what’s the big deal if the state kills a bunch of terrorists outside the law?”
I support the author. Every apparatchik, with or without uniform, should be above the law. Let's open the stadium gates once again. Then only way we can confirm "democracy is revenge".
If we consider state as a political society then we should study the behavior of our society as well, we are excellent in producing so called defense analysts those who always trying to convince us that we have perpetual war in country and once society accept this propaganda as absolute truth then norms that prevail in civilize societies surely be disappear and this is tragedy of Pakistan.
Great Op Ed once again on the same topic. You wrote "So, what’s the big deal if the state kills a bunch of terrorists outside the law?" No big deal, they have been doing that for a long time. It is only recently we have started questioning that. All these killings must be the fault of democracy and elected govt. Our armed forces as usual are neither corrupt, incompetent nor murderers.
Dr Aafia Siddiqui, who the US believes, is a terrorist mastermind, had a trial and is now going towards an appeal process. If the evil, satanic, US state can offer a trial and hearing to what it believes are terrorists, whats wrong with the Pakistanis in Pakistan, getting similar treatment by its own security agencies?
State which has apologists like u can not propsper. States only propsper on liberals & secular values.
@Qurat-ul-Ain: Any state without functioning "institutions" within defined limits would loose any legitimacy to continue and must cease to exist before its populace cease to exist.
Well, It is all like expecting a lily flower to blossom on a cactus plant. It is now quite clear that our institutions are not working. The problem is, we are getting used to such things, we should have taken notice or acted when all this was in the budding phase. Nowadays (very sorry to say), a bomb blast or two is just like a routine for those unaffected by them directly. Relatives from abroad call to show their concern after such an incident but we, residing amidst all this tell them that it happens every day, why worry. We as individuals should play our part at our level, the house is the basic unit on which the society builds on. As regards the "Dirty hands", well Shakespeare did make a use of a yet conscience mind, though of a greedy mind behind the plot of killing Duncan. The obsessive thought of washing away the guilt and the repeated washing of the hands did show a state of mind where there still bred the feeling of remorse or gulit. But if the hands are indeed dirty and have been so habitually then the case is different. But yes I do agree that the the traitors, terrorists, criminals or whatever name you call them should be brought to book. Because, we cant have a good night's sleep after reading all about them then.......we still know they are at large to haunt us..
“I have dirty hands right up to the elbows. Do you think you can govern innocently?” Maybe not. But should it become the norm?
Of course it should not be the norm. Asking such a rhetorical question almost insults the readers of the tribune. Yet can the state help it? Corruption should not be the norm, suicide attacks should not be the norm, assassinations of governors should not be the norm, energy shortages should not be the norm, high treason, civil-military divides, an absence of political consensus on any level, the laughable effectiveness of the police, sectarian violence, kidnappings, religious intolerance, the spread of violent salafism, the ridiculous use of presidential immunity, the irresponsibility of the media- none of these things should be the norm, and yet, lo and behold, they are.
Some estimates claim 700, but lets say we reduce the number to 500 to avoid exaggeration. 500 terrorists have been released from custody, in the Swat and DIr regions alone, just because there was no one nuts enough to testify against them and because the police could not properly investigate (or decided not to). 500 terrorists who will not only go back to their terrorist ways, but will come back to their comrades with funny stories about how the state could do nothing to them. This will, in turn, embolden would be terrorists to join the cause of their recently released brothers. All of a sudden, in the absence of fear, you now have 1500 terrorists. Yay for due process! Hoorah for the civilian prosecution system!
Nothing positive is the norm in our country. The norm is, by any standard, deplorable. We live in a state of emergency, in drastic times, which need drastic measures. Focus and criticism should be shifted to institutions which need it far more than our armed forces. Clipping the wings of the one bird that flies in our country seems to me, at least, to be unintelligible, dangerous and a bad idea altogether.
The article does a great job of listing the dangers of the state taking unconstitutional action. What it does not do however, is point out that the state does so in the absence and/or in the wake of the inefficiencies and incapabilities of institutions that would otherwise be taking care of it. I do not imagine that the state takes some sort of twisted pleasure in assuming extra, legally grey duties. It does so because it cannot afford to allow due process to take place... And then fail. So call it emergency ethics or extra judicial killing, the impetus for it lies in the flaws in the system, namely the police and the courts. Yes it is dangerous for a culture of extra constitutional activities to develop within the state, but it is equally dangerous to continue leaving the larger issue unaddressed. The larger issue is that in an ideal system, the need for such measures would not arise. In an ideal system we would not be living in fear of terrorists, but sadly that is not the case. In an ideal system we would not have a military that interferes in politics, but again, that is not the case.we do not live in an ideal system. Heck we do not live in a system that is even remotely close to something that could be mistaken for ideal from a distance. And in this flawed system of ours, there seems to be only one institution that pulls its weight and strives to defend our security, the military. Similarly, in your writings, there seems to be only one institution that you strive to lambast, the military. Call me biased but it seems a little counter-intuitive, no?
@ Sarah: What do you expect in a state where no institution does what it's supposed to? The security forces aren't the only ones who believe themselves to be above the law here.
One cannot expect security forces that have developed a general disregard for law to use discretion in some cases while dispensing ‘justice’ outside the law in others. Couldnt agree more.